Citation Nr: 1310112 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-41 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a blood platelet disorder. 2. Entitlement to an evaluation in excess of 30 percent for bilateral sensorineural hearing loss disability. 3. Entitlement to an initial evaluation in excess of 30 percent for anxiety disability. 4. Entitlement to an initial evaluation in excess of 30 percent for osteoarthritis of the left wrist, status post total joint replacement. 5. Entitlement to an initial evaluation in excess of 30 percent for arthritis of the right wrist, status post fusion. 6. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: David L. Huffman, Esquire ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from September 1969 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). In pertinent part of the August 2008 rating decision, the RO awarded an increased rating from 20 to 30 percent for bilateral sensorineural hearing loss. In addition, the RO declined to reopen the previously denied claim for entitlement to service connection for a blood platelet disorder. In pertinent part of the August 2010 rating decision, the RO awarded the following: service connection for anxiety disability and assigned a 30 percent rating, effective from February 1, 2008; service connection for left wrist disability and assigned a temporary total rating from February 1, 2008 to February 28, 2009, and a 30 percent rating thereafter; and service connection for right wrist disability and assigned a 30 percent rating, effective from February 1, 2008. In a July 2011 statement, the Veteran stated his desire to submit a claim for entitlement to TDIU due to his service-connected disabilities. The Veteran is only service-connected for those disabilities currently listed on appeal. It appears that the RO has begun development of this claim, but it has not yet adjudicated the matter in the first instance. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Thus, in this case, while the Board is cognizant that a claim for TDIU has not been adjudicated below, the Board still has jurisdiction over the TDIU issue, as the Veteran stated in July 2011 correspondence that he was unemployable because of his service-connected disabilities currently on appeal. The Board notes that the Veteran requested a hearing before a member of the Board on his September 2010 VA Form 9 Appeal. The Veteran was scheduled for such a hearing in February 2013, but he failed to report for this hearing. He has not requested that the hearing be rescheduled. As such, the Board does not find that his hearing request has been withdrawn. 38 C.F.R. § 20.704(d). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks to reopen his previously denied claim for service connection for a blood platelet disorder and he seeks increased ratings for his bilateral sensorineural hearing loss, anxiety, and right and left wrist disability, as well as TDIU. Based on a review of the evidence of record, the Board finds it is unable to adjudicate the Veteran's claims at this time. Initial Adjudication of Evidence The Board notes that the Veteran's increased rating claims were last adjudicated by RO was in a May 2011 statement of the case (SOC). Since May 2011, additional evidence pertaining to the increased rating claims has been associated with the claims folder. The record shows that the Veteran underwent VA audiology, psychiatric, and orthopedic examinations in conjunction with the Veteran's TDIU claim. These VA examination reports reflect the most recent evaluation of the severity of the Veteran's disabilities. The Veteran has a right to have the additional evidence considered by the RO/AMC in the first instance. See 38 C.F.R. § 20.1304 (2002); Disabled Veterans of America v. Principi, 327 F.3d 1339 (Fed. Cir. 2003). A review of the record, including Virtual VA paperless claims processing system, does not reflect that the Veteran has been provided with an SSOC on these matters while the appeal was pending. In addition, the Veteran has not waived review by the RO/AMC. To ensure that the Veteran's procedural rights are protected, insofar as he is afforded the opportunity for RO/AMC adjudication in the first instance, the Board must return these matters to the RO/AMC, for its initial consideration of the evidence. Thereafter, he must be provided with an SSOC. The RO's development of the TDIU claim also suggests that a temporary claims folder has been created and located at the RO. In accordance with any applicable policies, the temporary folder must be consolidated with the Veteran's claim folder. Social Security Administration (SSA) Records A remand is also needed in order to obtain outstanding records from SSA. The record shows the Veteran has been awarded disability benefits from the SSA. See December 2010 SSA inquiry. The evidence of record does not contain any SSA records, and there is no indication such were sought. Although it is unclear for what disabilities the Veteran has been awarded disability benefits, since the SSA record may contain pertinent information relating to the Veteran's claims, an effort must be made to obtain them. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). VA treatment records In a May 2011 statement from the Veteran's Representative, he identified that the Veteran had 98 pages of VA treatment records dated from April 2008 to November 2010 from the VA medical facility in Tampa, Florida. In November 2012, the Veteran's representative identified 113 pages of VA medical records dated from August 2011 to August 2012 from the same VA medical facility. A review of the record, including the VA Virtual paperless claims processing system, does not reflect that such a substantial number (211 pages) of VA treatment since 2008 have been associated with the claims folder. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt must be made to identify and associate these records with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. In accordance with any applicable policies, any temporary claims folder must be consolidated with the Veteran's main claim folder. 2. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, must be obtained from SSA and associated with the claims file. All reasonable attempts must be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which must be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The RO/AMC must attempt to procure copies of all VA treatment records which have not previously been obtained. Specifically, the RO/AMC must request treatment records from VA medical facilities in Tampa, Florida dated from 2008 to 2012. All attempts to secure this evidence must be documented in the claims folder by the RO. 4. Review the evidence of record and determine whether any additional development is needed, to include new VA examinations, especially if the additional evidence suggests a worsening of the Veteran's disabilities. The Board would point out that no such action is required by this REMAND at this time. 5. Thereafter, the RO/AMC must readjudicate the new and material evidence and service connection claims and adjudicate the TDIU claim in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied (including TDIU), the RO/AMC must furnish the Veteran and his representative with a supplemental statement of the case and afford the applicable time period during which the Veteran can respond. Then, the RO/AMC must return the case to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).